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Author: The Federalist Society

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SCOTUScast is a project of the Federalist Society for Law & Public Policy Studies. This audio broadcast series provides expert commentary on U.S. Supreme Court cases as they are argued and issued. The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues. View our entire SCOTUScast archive at http://www.federalistsociety.org/SCOTUScast
211 Episodes
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Fourth Estate Public Benefit Corp. v. Wall-Street.com - Post-Decision SCOTUScast
On March 4, 2019, the Supreme Court decided Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case involving a split among the Courts of Appeals regarding when a copyright owner may initiate a suit for infringement in federal court. Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. Wall-Street.com and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street.com was required to remove all Fourth Estate content from its website before cancelling its account. Wall-Street cancelled its account but continued to display Fourth Estate articles, and Fourth Estate filed suit for copyright infringement against Wall-Street.com and its owner in federal district court. At the time Fourth Estate filed suit, it had submitted applications with the Registrar of Copyrights, but the Registrar had not yet acted upon them. Wall-Street.com moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment, but noted a split among the federal courts of appeals on the issue: whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach). Granting certiorari, the Supreme Court unanimously affirmed the judgment of the Eleventh Circuit. In an opinion delivered by Justice Ginsburg, the Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.
Timbs v. Indiana - Post-Decision SCOTUScast
On February 20, 2019, the Supreme Court decided Timbs v. Indiana, a case involving the incorporation of the Eighth Amendment’s excessive fines clause against the States.Following his arrest en route to a controlled drug purchase after having previously purchased about $400 worth of heroin from undercover police officers, Tyson Timbs pled guilty to felony counts of drug dealing and conspiracy to commit theft, and was sentenced to a year of home detention and several years of probation, plus roughly $1,200 in police costs and related fees. In addition, the State of Indiana sought forfeiture of Timbs’ Land Rover, which he had purchased using $42,000 of his late father’s life insurance proceeds. Indiana claimed that it could seize the car because it had been driven to buy and transport heroin, even though the car was worth more than four times the maximum fine permitted for Timbs’ drug conviction. The Supreme Court of Indiana upheld the forfeiture against an Eighth Amendment challenge on the grounds that the U.S. Supreme Court had never incorporated that amendment’s “excessive fines” clause against the states. The United States Supreme Court granted certiorari to consider the issue.By a vote of 9-0, the Supreme Court vacated the judgment of the Supreme Court of Indiana and remanded the case. In an opinion delivered by Justice Ginsburg, the Supreme Court held that the Fourteenth Amendment incorporates the Eighth Amendment’s excessive fines clause against the States. Justice Ginsburg’s majority opinion was joined by the Chief Justice and Justices Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Gorsuch filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment. To the discuss the case, we have Christopher Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at University of Mississippi School of Law.
Franchise Tax Board of California v. Hyatt - Post-Argument SCOTUScast
On January 9, 2019, the Supreme Court heard argument in Franchise Tax Board of California v. Hyatt, a case considering whether one state may, without its consent, be sued by a private citizen in another state’s courts. In the 1990s, Gilbert Hyatt moved from California to Nevada. Following an investigation and audit, however, the Franchise Tax Board of California (FTB) claimed that he had misstated the date of his move and therefore owed California millions in unpaid taxes, penalties and interest. Hyatt then brought a tort suit against FTB, which is a California state agency, in Nevada state court--and won a jury verdict of nearly $500 million. Although the Nevada Supreme Court set aside much of the award on appeal, it nevertheless affirmed an award of $1 million for fraud--even though a Nevada statute would have capped such damages in a similar suit against Nevada officials at $50,000. Nevada’s interest in providing adequate redress to its own citizens, the court concluded, superseded the application of any statutory cap for California’s benefit. California sought review in the U.S. Supreme Court, urging it to overrule the 1979 decision Nevada v. Hall, which held that one state’s courts could adjudicate a private citizen’s lawsuit against another state without the second state’s consent. The Supreme Court granted certiorari but split 4-4 on the issue, which resulted in a technical affirmance of the Nevada Supreme Court’s exercise of jurisdiction. Reaching the merits, the Court held by a vote of 6-2 that the U.S. Constitution did not permit Nevada to apply a rule of Nevada law that awarded damages against California greater than it could award against Nevada in similar circumstances. On remand, the Nevada Supreme Court reissued its vacated opinion except as to the damages portion and applied the statutory damages caps for FTB’s benefit. FTB again petitioned for certiorari, however, and the U.S. Supreme Court agreed to revisit the issue on which it had previously split 4-4: whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled. To discuss the case, we have Stephen Sachs, Professor of Law at Duke University.
Carpenter v. Murphy - Post-Argument SCOTUScast
On November 27, 2018, the Supreme Court heard argument in Carpenter v. Murphy, a case considering the 1866 territorial boundaries of the Creek Nations and Indian country jurisdiction. In 1999, Patrick Murphy, a member of the Muscogee (Creek) Nation confessed to the killing of George Jacobs. The State of Oklahoma charged him with murder and he was convicted in state court, receiving the death penalty. In 2004, Murphy sought post-conviction relief in federal district court, arguing that the Oklahoma state courts had lacked jurisdiction because the federal Major Crimes Act requires that a member of an Indian Nation alleged to have committed murder in Indian territory be tried in federal court. The Oklahoma Court of Criminal Appeals rejected this argument, concluding Murphy had not shown that the site of the murder fell within Indian territory. Murphy thereafter sought habeas relief in federal district court, again raising his jurisdictional challenge (among other claims). The district court rejected his argument, but granted a certificate of appealability on the issue. On appeal, the U.S. Court of Appeals for the Tenth Circuit ruled in Murphy’s favor. Noting the parties’ agreement that the murder occurred within the Creek Reservation if Congress had not disestablished it or diminished its borders, the Court--invoking the Supreme Court’s 1984 decision Solem v. Bartlett--concluded that Congress had not done so. As a result, the Oklahoma courts lacked jurisdiction to charge and try Murphy for murder. Chief Judge Tymkovich, concurring in the denial of Oklahoma’s motion for rehearing en banc, however, suggested the case would benefit from Supreme Court review. He noted, among other things, that “the boundaries of the Creek Reservation outlined by the panel opinion encompass a substantial non-Indian population, including much of the city of Tulsa; and Oklahoma claims the decision will have dramatic consequences for taxation, regulation, and law enforcement.” The Supreme Court subsequently granted certiorari to consider whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a). To discuss the case, we have Troy Eid, Shareholder at Greenberg Traurig.
Thacker v. Tennessee Valley Authority - Post-Argument SCOTUScast
On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity. In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction. On appeal, the US Court of Appeals for the Eleventh Circuit affirmed that judgment. Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied. The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims. To discuss the case, we have Richard Peltz-Steele, Professor at University of Massachusetts School of Law.
Fourth Estate Public Benefit Corp. v. Wall-Street.com - Post-Argument SCOTUScast
On January 8, 2019, the Supreme Court heard argument in Fourth Estate Public Benefit Corp. v. Wall-Street.com, a case considering whether a copyright owner may sue for infringement in federal court after merely applying for registration of the copyright, or whether the Registrar of Copyrights must first act on the application. Fourth Estate Public Benefit Corp. is an online news organization that licenses articles to different websites but retains the copyright to those articles. Wall-Street.com and Fourth Estate entered into a license agreement for a number of articles written by Fourth Estate. As part of the agreement, Wall-Street was required to remove all Fourth Estate content from its website before cancelling its account. When Wall-Street cancelled its account but continued to display Fourth Estate articles, Fourth Estate filed suit for copyright infringement against Wall-Street and its owner in federal district court. The defendants moved to dismiss, arguing that the Copyright Act permits an infringement suit only after the Registrar of Copyrights approves or denies an application to register the copyright at issue. Here, Fourth Estate alleged that it had filed applications with the Registrar, but did not indicate whether any application had been acted upon. The district court agreed with the defendants and dismissed Fourth Estate’s complaint without prejudice. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment. Noting a circuit split on whether the ability to file an infringement suit turns on application by the copyright owner (the “application” approach) or the making of a decision on the application by the Registrar of Copyrights (the “registration” approach), the Eleventh Circuit adhered to the registration approach. The Supreme Court granted argument to address the circuit split regarding whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeals for the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the Tenth and, in the decision below, the Eleventh Circuits have held. To discuss the case, we have Brian Frye, Associate Professor of Law at University of Kentucky College of Law.
United States v. Stitt and United States v. Sims - Post-Decision
On December 10, 2018, the Supreme Court decided the consolidated cases United States v. Stitt and United States v. Sims, both concerning the federal Armed Career Criminal Act (ACCA). ACCA imposes a 15-year mandatory minimum prison sentence on any federal firearms offender who has three or more convictions for a “violent” felony or serious drug offense. “Burglary” qualifies as a violent felony under ACCA, but the statute applies a “generic” understanding of burglary that may be narrower than some state burglary offenses. A prior state conviction does not qualify as burglary under ACCA if the elements of the state statute are broader than those of generic burglary, namely: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Here, both defendants persuaded federal courts of appeals--the Sixth Circuit for Stitt and the Eighth Circuit for Sims--that their sentences were improperly enhanced because predicate burglary convictions under the laws of Tennessee and Arkansas, respectively, involved elements categorically broader than the generic burglary encompassed by ACCA. The Supreme Court consolidated the cases and granted certiorari to consider whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” for purposes of ACCA. The Supreme Court unanimously reversed the judgment of the Sixth Circuit in Stitt and vacated the judgment of the Eighth Circuit in Sims, remanding that case for additional proceedings relating to the breadth of Arkansas’ burglary statute. In an opinion delivered by Justice Breyer, the Court held that the term “burglary” in ACCA includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. To the discuss the case, we have Robert Leider, Associate Professor of Law at George Mason University Antonin Scalia Law School.
Nieves v. Bartlett -- Post-Argument
On November 26, 2018, the Supreme Court heard argument in Nieves v. Bartlett, a case considering the merit of retaliatory arrest claims in the presence of probable cause for arrest. In 2014, Russell Bartlett was arrested by two police officers, Sergeant Nieves and Trooper Weight, during an outdoor party that was part of the annual “Arctic Man” festival held in Alaska’s Hoodoo Mountains. Bartlett, who appeared intoxicated, approached Trooper Weight, who had been speaking to a minor regarding suspected underage drinking, and loudly demanded that Weight stop. When Trooper Weight pushed Bartlett back to create space between the two men, Nieves, who had observed the contact, ran over and a struggle ensued. The officers subdued and arrested Bartlett, who was later released from detention without injury. Although the state ultimately declined to prosecute Bartlett on charges of disorderly conduct and resisting arrest, the prosecutor indicated his belief in the existence of probable cause for that arrest. Bartlett filed suit against the officers in federal district court, claiming false arrest, excessive force, malicious prosecution, and retaliatory arrest. The district court granted summary judgment to Sergeant Nieves and Trooper Weight on qualified immunity grounds, but the U.S. Court of Appeals reversed that judgment as to the retaliatory arrest claim and remanded the case. Under circuit precedent, the Court concluded, “an individual has a right to be free from retaliatory police action, even if probable cause existed for the action.” The Supreme Court granted the officers’ subsequent petition for certiorari, however, to address whether probable cause defeats a First Amendment retaliatory-arrest claim under the civil rights statute 42 U.S.C. § 1983. To discuss the case, we have Lisa Soronen, Executive Director of the State and Local Legal Center.
Nutraceutical Corp. v. Lambert - Post-Argument SCOTUScast
On November 27, 2018, the Supreme Court heard argument in Nutraceutical Corp. v. Lambert, a case considering whether Federal Rule of Civil Procedure 23(f), which imposes a 14-day deadline for appealing from a grant or denial of class-action certification, can be equitably tolled. Troy Lambert bought a dietary supplement that claimed to be an aphrodisiac containing sexual performance-enhancing herbs. He thereafter brought a class action in federal district court against the drug’s manufacturer, Nutraceutical Corp., alleging violations of U.S. Food and Drug Administration requirements and various California consumer protection statutes. The district court initially certified the class action, but following reassignment of the case to a new judge and discovery raising concerns about Lambert’s classwide damages model, Nutraceutical moved to decertify the class and the district court granted the motion on February 20, 2015. On March 2, 10 days after the class had been decertified, Lambert informed the court that he intended to file a motion for reconsideration. The district court instructed him to file the motion within 10 days, which was 20 days in total from the original class desertification. Lambert moved for reconsideration on March 12 with further evidence to support his full refund damages model. The district court denied his motion in June. Fourteen days later, Lambert filed a petition under Federal Rule of Civil Procedure 23(f) for permission to appeal the district court’s orders granting decertification and denying reconsideration to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit conditionally granted the petition but instructed the parties to address whether it was timely. Under Rule 23(f), a petition for permission to appeal must be filed with the circuit clerk “within 14 days” after the order “granting or denying class-action certification” was entered. Although Lambert’s petition came within 14 days of denial of his motion for reconsideration, it was filed months after the actual order granting decertification. The Ninth Circuit held that Lambert’s petition was nevertheless timely. Rule 23(f) is not jurisdictional, the court determined, and its deadline should equitably tolled by a timely motion for reconsideration such as Lambert’s. Reaching the merits, the Ninth Circuit then reversed and remanded, holding that the district court had abused its discretion in decertifying the class. The U.S. Supreme Court, however, granted certiorari to address whether the Ninth Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules—such as Federal Rule of Civil Procedure 23(f)—and can excuse a party’s failure to file timely within the 14-day deadline, in conflict with the decisions of 7 other Circuit Courts of Appeals. To the discuss the case, we have Michael Morley, Assistant Professor of Law at Florida State University College of Law.
Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc - Post-Argument SCOTUScast
On December 4, 2018, the Supreme Court heard argument in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. This case arose out of a dispute over the validity of a patent covering a product used to reduce the likelihood of chemotherapy-induced nausea and vomiting. At issue in this case is whether agreements entered into by Helsinn more than one year prior to filing for patent protection put the invention “on sale” and thus would invalidate the patent. Although the meaning of “on sale” in the Patent Act was long believed to be settled, the 2011 America Invents Act (AIA) made changes to the statutory provisions that include the “on sale” bar. The question for the Supreme Court is whether these changes to the statute change the previous understanding of the term “on sale.” In April 2001, Helsinn entered into two agreements with MGI Pharma. Although these agreements were announced in a press release, specific information about the products, like dosing formulations, were omitted. In 2003, Helsinn filed a provisional patent application covering the product. Three patents arose from this provisional patent application prior to the enactment of the AIA; however, one patent was subject to the new provisions of the AIA. In 2011, Teva sought FDA approval to make a generic version of the patented product. Helsinn sued Teva for patent infringement based on this ANDA filing. Teva argued that the patent was invalid because Helsinn’s agreements with MGI put the product “on sale” before the relevant date. The district court rejected Teva’s argument, concluding that the AIA had changed the meaning of “on sale” to require the invention be made public by the sale. Because the dosing information was not provided in the press release regarding the agreements, the district court concluded the agreements did not make the invention public and there was no “on sale” bar. The Federal Circuit reversed, holding that inventions are made available to the public whenever there is a commercial offer for sale and that the sale is public even when the details of the invention are not disclosed to the public by the sale. Thus, the “on sale” bar applied to Helsinn’s patent. The U.S. Supreme Court then granted certiorari to address whether under the AIA, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention. To the discuss the case, we have Kristen Osenga, Professor of Law at University of Richmond School of Law.
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